(SS) Lopez v. Commissioner of Social Security, No. 1:2013cv00741 - Document 24 (E.D. Cal. 2014)

Court Description: ORDER DENYING Plaintiff's Appeal From the Administrative Decision of the Commissioner of Social Security signed by Magistrate Judge Sheila K. Oberto on 7/7/2014. CASE CLOSED. (Jessen, A)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 BRONSON A. LOPEZ, 13 Plaintiff, 14 Case No. 1:13-cv-00741-SKO ORDER REGARDING PLAINTIFF'S COMPLAINT v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 (Docs. 16, 22, 23) Defendant. 17 ____________________________________/ 18 19 I. BACKGROUND 20 Plaintiff Bronson Lopez (“Plaintiff”) seeks judicial review of a final decision of the 21 22 Commissioner of Social Security (the "Commissioner" or "Defendant") denying his applications 23 for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to 24 Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is 25 currently before the Court on the parties' briefs, which were submitted, without oral argument, to 26 the Honorable Sheila K. Oberto, United States Magistrate Judge.1 27 1 28 The parties consented to the jurisdiction of the United States Magistrate Judge. (Docs. 8, 10.) 1 2 II. FACTUAL BACKGROUND Plaintiff was born in 1971, completed high school, and previously worked as a caregiver, 3 groundskeeper, hacker (laying floor tiles), and stocker. (Administrative Record ("AR") 19, 48.) 4 On September 16, 2010, Plaintiff filed an application for DIB and SSI benefits. (AR 12.) 5 A. Relevant Medical History 6 Plaintiff’s medical records begin in May 22, 2009, when he presented to Community 7 Medical Centers (“Community”) for psychiatric medication refills in May and then June 2009. 8 (AR 221, 223.) Plaintiff complained of a history of anxiety and depression. (AR 221, 223.) The 9 Community doctor screening Plaintiff for his refills in June 2009 described him as alert, “oriented 10 times three,” and in no acute distress, and recommended follow up in one to two months. (AR 11 223.) 12 Plaintiff next returned for medical care on December 31, 2010, when Mary Lewis, Psy.D., 13 conducted a psychiatric evaluation. (AR 229-34.) Plaintiff complained to Dr. Lewis of daily 14 depression and anxiety, but denied suicidal ideation or history of psychiatric hospitalization. (AR 15 229-31.) Plaintiff said he had problems breathing, felt sad, and could not do anything. (AR 229.) 16 Plaintiff reported that in a typical day he goes for a walk, watches television, and performs 17 household chores such as washing dishes, cooking, and doing laundry. (AR 233.) Plaintiff said 18 he had no friends, and denied a history of getting into physical altercations. (AR 233.) 19 Dr. Lewis described Plaintiff as pleasant and cooperative with good eye contact and 20 appropriate facial expressions. (AR 229, 231.) Plaintiff exhibited a euthymic mood and 21 appropriate affect. (AR 231.) He had normal thought processes, intellectual functioning, and 22 judgment. (AR 231-32.) He did not display any signs of hallucinations or delusions. He 23 demonstrated satisfactory memory, attention, and concentration. (AR 232-33.) For example, he 24 performed addition, subtraction, and multiplication satisfactorily. He successfully completed 25 recent memory recall drills. (AR 232-33.) 26 Plaintiff told Dr. Lewis he previously worked for ten years as an in-home care provider. 27 (AR 230.) He last worked as a gardener at Fresno City College from 2007 to 2008, during which 28 he reportedly had a good working relationship with his boss and co-workers, but stopped working 2 1 because the program terminated. (AR 230.) Plaintiff told Dr. Lewis he was not willing to work 2 in any job position, was not actively seeking employment, and was not involved in a retraining 3 program. (AR 230.) Plaintiff explained to Dr. Lewis, “I can’t work because I have a lot of fear.” 4 (AR 229.) 5 Dr. Lewis opined that Plaintiff had no psychiatric diagnoses. (AR 233.) The doctor 6 assigned a Global Assessment of Functioning (“GAF”)1 score of 65. She noted Plaintiff’s 7 “reported symptoms of depression and anxiety are not typical of a major mental disorder. Despite 8 [Plaintiff’s] reported symptoms and history, he does not appear to be suffering from a major 9 mental disorder.” (AR 233.) Dr. Lewis commented, “[f]rom a mental health standpoint, the 10 claimant appears to be able to function adequately.” (AR 233.) Plaintiff had no significant 11 limitation in his ability to understand and remember very short and simple instructions; 12 understand and remember detailed instructions; maintain concentration and attention; accept 13 instructions from supervisors and respond appropriately; sustain an ordinary routine without 14 special supervision; complete a normal workday and work week without interruptions at a 15 consistent pace; interact with coworkers; or deal with various changes in the work setting. (AR 16 233-34.) Dr. Lewis assessed the likelihood that Plaintiff would emotionally deteriorate in a 17 work environment as minimal. (AR 234.) 18 On January 23, 2011, State agency psychiatric consultant, Patrice G. Solomon, Ph.D., 19 reviewed Plaintiff’s record and evaluated Plaintiff’s condition by completing a Psychiatric Review 20 Technique form. (AR 237-50.) Dr. Soloman noted Plaintiff had no prior psychiatric 21 hospitalizations and a normal mental status exam with no evidence of hallucinations. Dr. Soloman 22 affirmed Dr. Lewis’ findings and opined Plaintiff had no medically determinable mental 23 impairment. (AR 237.) 24 25 26 27 28 1 The GAF represents an examiner’s judgment of the individual’s overall level of psychological functioning. A person’s GAF score is based on a numerical rating ranging between 0 and 100. A GAF of 61-70 indicates “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.” See American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders, 4th text revision, 2000, pp. 32, 34. 3 1 On February 18, 2011, Plaintiff again sought treatment at Community with complaints of 2 anxiety and panic attacks. (AR 252, 305.) Plaintiff told Daniel DaSilva, M.D., that he had a 3 history of polysubstance abuse when he was a child. (AR 252.) Plaintiff was “afraid to go to 4 sleep [because] I might not wake up.” (AR 252.) He heard voices, had visual hallucinations, and 5 believed people tried to hurt him, but he denied suicidal or homicidal ideation. (AR 252.) Dr. 6 DaSilva diagnosed Plaintiff with depression with psychotic features. (AR 252.) The doctor noted 7 Plaintiff might have paranoid schizophrenia and referred him to a county program to evaluate his 8 need for medication. (AR 252.) 9 On March 10, 2011, Plaintiff received an initial consultation at Fresno County Mental 10 Health (“Mental Health”) with Larry Gay, L.C.S.W. 11 depression, anxiety, social paranoia, and auditory hallucinations. 12 decreased ability to attend to activities of daily living due to daily feelings of sadness and 13 hopelessness. (AR 270-71.) He again denied suicidal or homicidal ideation. (AR 271.) Plaintiff 14 told Mr. Gay he had received treatment for depression and anxiety for the previous three years, 15 but never divulged his auditory hallucinations due to fear, and never received treatment for 16 auditory hallucinations or psychosis. (AR 271.) Plaintiff denied any psychiatric or suicidal 17 episodes. (AR 271, 276.) (AR 270.) Plaintiff complained of (AR 270.) He reported 18 Mr. Gay described Plaintiff as tense and suspicious, yet calm, cooperative, and “oriented 19 times four.” (AR 273.) Mr. Gay described Plaintiff’s appearance as “within cultural norms,” but 20 noted Plaintiff exhibited a depressed and panicky mood with flat and congruent affect and slowed 21 speech. (AR 273.) He had focused, coherent thought flow with fair memory, judgment, and 22 insight. 23 recommended medication, as well as individual and group therapy for one year. (AR 270, 274.) 24 He assigned Plaintiff a GAF of 45.2 (AR 274.) (AR 274.) Mr. Gay opined Plaintiff was a low risk to himself and others, and 25 26 27 28 2 A GAF of 41-50 indicates “[s]erious symptoms (e.g., suicidal ideation, sever obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job).” See American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders, 4th text revision, 2000, pp. 32, 34. 4 1 Also on March 10, 2011, Homer LeRoy Ramsey, M.D., examined Plaintiff. (AR 276-78.) 2 Dr. Ramsey also described Plaintiff as cooperative, alert and oriented with an organized thought 3 process, normal judgment, and average intelligence. (AR 277.) He noted Plaintiff exhibited a 4 depressed and anxious mood with flat affect. Contrary to Mr. Gay’s observations, however, the 5 doctor described Plaintiff as well-groomed with normal speech. (AR 277.) Plaintiff described 6 hallucinations, helplessness/hopelessness, and worthlessness. (AR 277.) He was hearing voices 7 all the time, which were trying to hurt him and told him to watch out. (AR 266.) Dr. Ramsey 8 diagnosed Plaintiff with a psychotic disorder not otherwise specified (“NOS”) and polysubstance 9 dependence. (AR 277.) He opined that Plaintiff’s mental illness might have been caused by 10 drugs, but might also be a primary disorder, and recommended medication changes with a follow- 11 up appointment in two to three weeks. (AR 278.) 12 At a follow up appointment with Dr. Ramsey on April 6, 2011, Plaintiff indicated 13 medication improved his anxiety and sleep, but he still suffered from symptoms. (AR 268.) Dr. 14 Ramsey indicated Plaintiff had “impaired judgment with severe chronic mental illness that was 15 probably exacerbated by drugs but it may very well be primary and is not going away and is 16 disabling.” (AR 268.) 17 (AR 268.) During this visit, Dr. Ramsey diagnosed Plaintiff with psychotic disorder NOS, as 18 well as “schizophrenia, paranoid type, chronic (rule-out).” (AR 268.) He assigned Plaintiff a 19 GAF of 46 and recommended increasing medication dosages with follow up in eight weeks. (AR 20 269.) 21 He noted however, that Plaintiff’s condition improved with treatment. On April 25, 2011, Plaintiff saw Robert Oldham, M.D., as a walk-in patient. (AR 266.) 22 Plaintiff reported continued auditory and visual hallucinations, panic attacks, and social phobia. 23 (AR 266.) Upon examination, Dr. Oldham described Plaintiff as well-groomed, cooperative, 24 alert, and oriented with normal speech, and cognition. (AR 266.) The doctor noted Plaintiff 25 seemed to understand he has a mental illness, needed treatment, and could express a basic 26 understanding of the risk, benefits, and alternatives of his medication. (AR 266.) He diagnosed 27 Plaintiff with psychotic disorder NOS and social phobia, adjusted his medications, and 28 recommended follow up in six weeks or less. (AR 267.) 5 1 From late April through November 2011, Plaintiff saw Dr. Oldham for anxiety, paranoia, 2 and hallucinations. (AR 261-64, 266-67, 281-88.) During this time, Dr. Oldham noted Plaintiff’s 3 condition improved with treatment (AR 262, 264, 285, 287), and Plaintiff denied any side effects 4 from his medication (AR 261, 263, 266, 281, 283, 285, 287). Plaintiff also denied suicidal or 5 homicidal ideation. (AR 261, 263, 266, 281-83, 285, 287.) 6 In May 2011, Plaintiff reported reduced paranoia and hallucinations. (AR 261, 263.) He 7 attended group therapy and planned to go back, and also found breathing exercises and 8 meditation helpful in reducing his anxiety. (AR 263.) In June 2011, Plaintiff reported he left the 9 house more often. (AR 261.) He still had auditory hallucinations and felt depressed, but reported 10 improvement with medication. 11 frustrations and accept feedback regarding his cognitive distortions. (AR 261.) Six months later, 12 in October and November 2011, Plaintiff reported the medications had improved his 13 hallucinations and paranoia, and he could get out of his “comfort zone” more often. (AR 281, 14 283.) His relationships with others had improved, such that he planned on volunteering and 15 wanted to get a dog. (AR 281, 283.) Plaintiff exhibited a more upbeat mood. (AR 283.) (AR 261.) Dr. Oldham noted Plaintiff could express his 16 Over the course of Plaintiff’s treatment, Dr. Oldham diagnosed Plaintiff with psychotic 17 disorder NOS, personality disorder, and social phobia (AR 262, 264, 267, 282, 285, 287). He 18 assigned a GAF of 46. (AR 287.) He recommended Plaintiff continue medication and participate 19 in behavioral activation, individual and group psychotherapy, and follow up in one to two 20 months. (AR 262, 264, 267, 282, 285-88.) Plaintiff refused to participate in psychotherapy, but 21 told the doctor he would participate in behavioral activation. (AR 284-85.) 22 On May 4, 2011, State Agency psychological consultant, A. Garcia, M.D., reviewed 23 Plaintiff’s medical record and affirmed Dr. Soloman’s January 2011 assessment that Plaintiff did 24 not have a medically determinable mental impairment. (AR 257-58.) 25 On July 1, 2011 Plaintiff attended group therapy for his depression symptoms. (AR 260.) 26 The group leader reported Plaintiff sat quietly and listened. (AR 260.) He exhibited restricted 27 affect, but made comments when questioned. At the end of group, Plaintiff told the group leader 28 that he enjoyed the session and was glad he attended. (AR 260.) 6 1 On October 21, 2011, Firdose Gill, D.O., saw Plaintiff for anxiety and prescription refills. 2 (AR 296, 298.) Plaintiff denied prior hospitalizations for psychological conditions. (AR 298.) 3 Upon exam, Dr. Gill described Plaintiff as alert and oriented times three and in no acute distress. 4 (AR 299). Plaintiff denied suicidal ideation. (AR 300.) Dr. Gill recommended increasing 5 Plaintiff’s Klonopin dosage and follow up in three to four months. (AR 300.) 6 On January 3, 2012, Dr. Oldham completed a mental impairment questionnaire at 7 Plaintiff’s request. (AR 290-94.) Dr. Oldham diagnosed Plaintiff with psychotic disorder NOS 8 and social phobia. (AR 291.) He assigned Plaintiff a GAF of 50 and indicated he had treated 9 Plaintiff monthly with anti-psychotic anti-depressant and anti-anxiety medications. (AR 291.) 10 He noted Plaintiff had a partial response to this treatment, with no side effects to the prescribed 11 medications. 12 recommendations. (AR 291.) (AR 291.) Plaintiff had a fair diagnosis if he adhered to treatment 13 In a check-box list, Dr. Oldham opined Plaintiff had marked limitations in activities of 14 daily living, social functioning, and ability to maintain concentration, persistence, or pace. (AR 15 292.) 16 unstable interpersonal relationships, deeply ingrained maladaptive patterns of behavior, and 17 emotional withdrawal or isolation. (AR 292.) Plaintiff had no episodes of decompensation 18 within a 12-month period, but even a minimal increase in mental demands or change in 19 environment would cause Plaintiff to decompensate. (AR 293, 294.) Plaintiff’s impairment or 20 treatment would cause him to be absent from work about four days per month and could be 21 expected to last at least 12 months. (AR 294.) Plaintiff would have difficulty working at a 22 regular job on a sustained basis because he is distrustful of others, has difficulty in groups of 23 people, and has a “hard time staying on.” (AR 294.) Plaintiff had difficulty thinking or concentrating, an impaired memory, intense and 24 B. Administrative Proceedings 25 The Commissioner denied Plaintiff’s SSI and DIB applications initially and again on 26 reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge 27 (“ALJ”). (AR 54, 64, 74, 80, 99.) On April 18, 2012, the ALJ held a hearing during which 28 Plaintiff testified, represented by counsel. (AR 26-53.) 7 Plaintiff’s Testimony 1 1. 2 Plaintiff testified he graduated from high school. He currently lives in the back room of a 3 house occupied by his sister and her two children. (AR 30.) He spends most of his time in his 4 room, and tries to read and do a little exercise during the day. (AR 30.) He has not had a driver’s 5 license about five years, after it was suspended for driving under the influence (“DUI”). (AR 31.) 6 Plaintiff’s neighbors drove him to the hearing. (AR 31.) 7 On a typical day, Plaintiff wakes up, makes something to eat, and tries to get out for a 8 walk. He waters the plants and trees, which, along with breathing exercises, calms him. (AR 45.) 9 He watches television two or three hours a day. (AR 45.) He has no friends but greets his family 10 members if he sees them. (AR 45-46.) Plaintiff cleans his toilet and sink. He reads, but needs 11 breaks because he gets tired and cannot see very well. (AR 46.) 12 Plaintiff was previously the in-home care provider of a relative for about 10 years. (AR 13 42.) He last worked five or six years ago at Fresno City College through a disability jobs program 14 watering plants. (AR 32, 41.) He worked about 16-20 hours a week, but the program was 15 discontinued. (AR 42.) At one point, Plaintiff applied for unemployment over the phone. (AR 16 43.) Plaintiff has applied for part time nursery work at three different nurseries and a hardware 17 store since his job at Fresno City College was terminated. (AR 47.) None of the venues offered 18 him a job. (AR 47.) 19 Plaintiff initially started having mental health problems when he was 12, but never told 20 anybody because he was afraid “they would take him away.” (AR 44.) As an adult, Plaintiff 21 started experiencing auditory and visual hallucinations, which caused him to call Fresno County 22 Mental Health (“Mental Health”) for assistance. (AR 43.) He hears voices every day, telling him 23 he is worthless, no good, or horrible. (AR 43.) Sometimes he is in bed for three days, and the 24 voices tell him people are trying to hurt him. (AR 44.) He used to hear voices while working. 25 (AR 44-45.) Plaintiff’s medicine is reducing the auditory hallucinations, and giving him strength 26 to distinguish they are not real, avoid answering them, and move on to something else. (AR 45.) 27 Plaintiff has never been hospitalized for psychiatric conditions. (AR 44.) He has been diagnosed 28 with schizophrenia “or something like that,” and takes five medications. (AR 38.) 8 1 In the past Plaintiff used PCP, methamphetamine, marijuana, alcohol, LSD, and cocaine. 2 (AR 34.) He completed a drug program when he was 13 and a three-month-long alcohol program 3 when he was 24. (AR 34.) He has not participated in alcohol or drug related programs since, but 4 was sent to a three month long DUI class which taught him about alcohol and accidents when he 5 was approximately 35 or 36 years old. (AR 35, 36.) He was last arrested for a DUI about five 6 years ago. (AR 36.) Plaintiff testified he was able to stop drinking alcohol and taking drugs 7 because he “didn’t want to live that type of life” anymore. (AR 35.) He does not recall if any 8 treating personnel have told him his mental problems were related to his drug and alcohol use. 9 (AR 37.) 10 Plaintiff was first incarcerated when he was 18 (approximately 1989), and most recently in 11 approximately 2007. (AR 33.) Plaintiff testified he was on disability when he was 23 because he 12 received six DUIs and was a severe alcoholic at the time. (AR 32.) Plaintiff spent five or six 13 years in prison for DUIs, drug sales, and possession of a firearm. (AR 32-33.) Plaintiff is not on 14 parole, last had a drug test about five years ago, and has not consumed alcohol or taken illegal 15 drugs for about five years. (AR 33-34.) He is “really trying to get his life in order” and trying to 16 take all his medications. (AR 34.) 17 Except when he was thirteen and saw a counselor, Plaintiff was not treated for his 18 psychological problems prior to seeing Dr. Oldham. (AR 39.) Plaintiff started seeing Dr. Oldham 19 at Mental Health one year before the hearing (beginning April 2011), visiting him about once a 20 month. (AR 38, 39.) Dr. Oldham told Plaintiff he is “going to have to learn to get better and try 21 to get better to try to help [him]self” and take his medications. (AR 39.) Plaintiff takes Saphris, 22 Risperdal, Klonopin, Toxil, and Protonix. (AR 39.) His side effects include some problems 23 sleeping and being bothered by the sun. (AR 40.) Regarding Plaintiff’s treating psychiatrist’s 24 suggestions for getting better, Plaintiff testified he “just got to keep trying, keep up with [his] 25 medicine, keep up to go see [Dr. Oldham], keep up to go do the volunteer work, keep up to try to 26 go to the meetings.” (AR 40.) 27 Plaintiff expressed interest in volunteering, and Dr. Oldham encouraged Plaintiff to 28 volunteer and to go at his own pace. (AR 41.) Plaintiff briefly volunteered at the front desk of 9 1 Mental Health last year, but only completed one shift because he became very nervous and “got 2 paranoid.” (AR 40.) Plaintiff attended some volunteer meetings after completing the shift. (AR 3 40.) Plaintiff went to “a few other groups” and has been taking walks to get out of the house and 4 be around other people. (AR 41.) 5 2. 6 Cheryl Chandler testified at the hearing as the vocational expert (“VE”). (AR 47-48.) The Vocational Expert Testimony 7 VE testified Plaintiff’s past work included caregiver, stocker, groundskeeper, and hacker. (AR 488 49.) The ALJ asked the VE to assume a hypothetical person of Plaintiff’s age, education, and 9 work experience, who is able to perform at all exertional levels, yet is limited to simple, routine 10 tasks and occasional public contact. (AR 49.) When asked if such a person would be able to 11 perform any work, the VE testified affirmatively regarding Plaintiff’s past work of landscape 12 worker. (AR 49.) Also, the person could perform the work of a dish washer and lumber handler. 13 (AR 49-50.) 14 In a second hypothetical, the ALJ added that the person could only interact “occasionally” 15 (meaning he can be in close proximity to, but only occasionally interact with) coworkers and 16 supervisors. (AR 50.) The VE assessed the person could perform the jobs of lumber handler, 17 package sealer machine operator, and box bender. (AR 51.) 18 In a third hypothetical, the ALJ added that the person would miss four days of work per 19 month due to a combination of symptoms from mental impairments. (AR 51-52.) Also, as a 20 result of the same impairments, the person would be off task for 30 percent of the day. (AR 52.) 21 The VE responded the hypothetical person could not perform any work. (AR 52.) 22 C. The ALJ’s Decision 23 The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. §§ 24 404.1520(a)(4), 416.920(a)(4). (AR 12-21.) The ALJ found Plaintiff met the insured status 25 requirements of the Social Security Act through December 31, 2012, and had not performed 26 substantial gainful activity as of or since September 15, 2010, the date Plaintiff alleged he became 27 disabled. (AR 14.) The ALJ found Plaintiff had the medically determinable impairments of 28 psychotic disorder NOS and polysubstance abuse. (AR 14.) She found none of Plaintiff’s 10 1 impairments alone or in combination met or equaled any impairment listed in 20 C.F.R. Part 404, 2 Subpart P, Appendix 1 (the “Listing”). (AR 14-16.) The ALJ next determined Plaintiff had the 3 residual functional capacity (“RFC”)3 to perform a full range of work at all exertional levels, but 4 with the non-exertional limitations to simple, repetitive tasks and occasional public contact. (AR 5 16.) Given his RFC, the ALJ determined Plaintiff could not perform his past relevant work as a 6 caregiver, but could make a successful adjustment to other work existing in significant numbers in 7 the national economy, such as landscape worker, dish washer, or lumber handler. (AR 19-21). 8 The ALJ determined Plaintiff had not been under a disability from September 15, 2010, through 9 the date of her decision. (AR 21.) 10 D. Plaintiff’s Contention on Appeal 11 Plaintiff claims the ALJ erred in her consideration of both Dr. Oldham’s opinion and 12 Plaintiff’s credibility. (Doc. 16, 9-18.) III. SCOPE OF REVIEW 13 The ALJ's decision denying benefits "will be disturbed only if that decision is not 14 15 supported by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599, 16 601 (9th Cir. 1999). In reviewing the Commissioner's decision, the Court may not substitute its 17 judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). 18 Instead, the Court must determine whether the Commissioner applied the proper legal standards 19 and whether substantial evidence exists in the record to support the Commissioner's findings. See 20 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). "Substantial evidence is more than a mere scintilla but less than a preponderance." Ryan v. 21 22 Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). "Substantial evidence" means "such 23 relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 24 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 25 26 27 28 3 RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. Social Security Ruling 96-8p. The RFC assessment considers only functional limitations and restrictions that result from an individual’s medically determinable impairment or combination of impairments. Id. "In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and 'the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 11 1 305 U.S. 197, 229 (1938)). The Court "must consider the entire record as a whole, weighing both 2 the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and 3 may not affirm simply by isolating a specific quantum of supporting evidence." Lingenfelter v. 4 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted). 5 6 IV. APPLICABLE LAW An individual is considered disabled for purposes of disability benefits if he or she is 7 unable to engage in any substantial, gainful activity by reason of any medically determinable 8 physical or mental impairment that can be expected to result in death or that has lasted, or can be 9 expected to last, for a continuous period of not less than twelve months. 42 U.S.C. 10 §§ 423(d)(1)(A), 1382c(a)(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The 11 impairment or impairments must result from anatomical, physiological, or psychological 12 abnormalities that are demonstrable by medically accepted clinical and laboratory diagnostic 13 techniques and must be of such severity that the claimant is not only unable to do her previous 14 work, but cannot, considering her age, education, and work experience, engage in any other kind 15 of substantial, gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 16 1382c(a)(3)(B), (D). 17 The regulations provide that the ALJ must undertake a specific five-step sequential 18 analysis in the process of evaluating a disability. In the First Step, the ALJ must determine 19 whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. 20 §§ 404.1520(b), 416.920(b). If not, in the Second Step, the ALJ must determine whether the 21 claimant has a severe impairment or a combination of impairments significantly limiting her from 22 performing basic work activities. Id. §§ 404.1520(c), 416.920(c). If so, in the Third Step, the ALJ 23 must determine whether the claimant has a severe impairment or combination of impairments that 24 meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. 404, Subpart 25 P, App. 1. Id. §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the ALJ must determine 26 whether the claimant has sufficient residual functional capacity (“RFC”) despite the impairment or 27 various limitations to perform her past work. Id. §§ 404.1520(f), 416.920(f). If not, in the Fifth 28 Step, the burden shifts to the Commissioner to show that the claimant can perform other work that 12 1 exists in significant numbers in the national economy. Id. §§ 404.1520(g), 416.920(g). If a 2 claimant is found to be disabled or not disabled at any step in the sequence, there is no need to 3 consider subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20 C.F.R. 4 §§ 404.1520, 416.920. 5 V. DISCUSSION Plaintiff contends the ALJ improperly (1) afforded reduced weight to Dr. Oldham’s 6 7 opinion as his treating physician, and (2) discredited Plaintiff’s testimony. (Doc. 16, 9.) The Commissioner responds that the ALJ’s decision to afford reduced weight to Dr. 8 9 Oldham’s opinion was supported by specific and legitimate reasons, and she properly determined 10 Plaintiff’s testimony was not credible. (Doc. 22, pp. 13, 16, 26.) 11 12 A. The ALJ Properly Afforded Reduced Weight to Dr. Oldham’s Opinion Plaintiff claims the ALJ failed to properly evaluate Dr. Oldham’s January 2012 opinion. 13 (Doc. 16, 9-10.) Plaintiff contends Dr. Oldham’s opinion was entitled to special weight because 14 he is a treating physician. As Dr. Oldham’s opinion was uncontroverted by other physicians, the 15 ALJ was required to articulate clear and convincing reasons to afford reduced weight to Dr. 16 Oldham’s opinions, but failed to do so. (Doc. 16, 13.) Plaintiff further contends the ALJ’s 17 proffered reasons for rejecting Dr. Oldham’s opinion were not valid because the opinion was 18 supported by the record. (Doc. 16, 13.) 19 The Commissioner responds that Dr. Oldham’s January 2012 opinion was contradicted by 20 other physicians’ opinions; therefore the ALJ was required to articulate only specific and 21 legitimate reasons for discrediting the opinion. (Doc. 22, 15-16.) Further, the ALJ properly 22 afforded reduced weight to the opinion, citing substantial evidence that the opinion was not 23 supported by the record. (Doc. 22, 15-16.) 24 1. 25 “By rule, the Social Security Administration favors the opinion of a treating physician Legal Standards Pertaining to Opinions of Treating Physicians 26 over non-treating physicians.” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). “If a treating 27 physician's opinion is ‘well-supported . . . and is not inconsistent with the other substantial 28 evidence in [the] case record, [it will be given] controlling weight.” Id. Even if a treating 13 1 physician's opinion is not given controlling weight, the opinion is still entitled to deference and 2 the ALJ must consider specified factors in determining the weight it will be given, including (1) 3 the length of the treatment relationship and the frequency of examination, and (2) the nature and 4 extent of the treatment relationship. Id. Additional factors relevant in evaluating the weight of 5 any medical opinion, not just treating physician opinions, include: (3) the amount of relevant 6 evidence that supports the opinion and the quality of the explanation provided, (4) the consistency 7 of the medical opinion with the record as a whole, (5) the specialty of the physician providing the 8 opinion, (6) and other factors such as the degree of understanding a physician has of Social 9 Security disability programs and their evidentiary requirements and the physician's familiarity 10 with other information in the record. Id. 11 If a treating physician's opinion is not contradicted by another doctor, it may only be 12 rejected for clear and convincing reasons supported by substantial evidence. Id. at 632 (quoting 13 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). If the treating physician's opinion is 14 contradicted by another doctor, it may not be rejected unless the ALJ provides specific and 15 legitimate reasons supported by substantial evidence. Id. (quoting Reddick, 157 F.3d at 725). 16 The ALJ may provide substantial evidence by setting out a detailed and thorough summary of the 17 facts and conflicting clinical evidence, stating her interpretation thereof, and making findings. 18 Magallanes v. Bowen, 881 F.2d at 747, 751 (9th Cir. 1989). The ALJ must do more than offer 19 conclusions; the ALJ must set forth their own interpretations and explain why they are correct. 20 Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988). 21 22 2. The ALJ Was Required to Articulate Only Specific and Legitimate Reasons to Discredit Dr. Oldham’s Opinion Because It Was Contradicted by Other Physicians’ Opinions 23 24 25 26 27 Plaintiff alleges Dr. Oldham’s January 2012 opinion was “uncontroverted,” and the ALJ was required to articulate clear and convincing reasons to discredit his opinion. (Doc. 16, 13.) The Commissioner responds that Dr. Oldham’s opinion was in fact controverted by several other doctors’ opinions. 28 14 1 If a treating physician's opinion is contradicted by another physician, the ALJ must 2 provide specific and legitimate reasons supported by substantial evidence to reject the opinion. 3 Reddick, 157 F.3d at 725. 4 Dr. Oldham’s opinion was contradicted by several other physicians’ opinions. On January 5 3, 2012, Dr. Oldham completed a mental impairment questionnaire for Plaintiff. (AR 290-94.) 6 Dr. Oldham diagnosed Plaintiff with a psychotic disorder NOS and social phobia. (AR 291.) In 7 contrast to Dr. Oldham’s opinion, Dr. Lewis, Dr. Soloman, and Dr. Garcia all opined Plaintiff did 8 not have any medically determinable mental impairment. 9 Dr. Oldham further opined Plaintiff: (1) had marked limitations in activities of daily living; 10 social functioning; and his ability to maintain concentration, persistence, or pace (AR 292); (2) 11 had difficulty thinking or concentrating, an impaired memory, intense and unstable interpersonal 12 relationships, deeply ingrained maladaptive patterns of behavior, and emotional withdrawal or 13 isolation (AR 292); and (3) would have difficulty working at a regular job on a sustained basis 14 because he is distrustful of others, has difficulty in groups of people, and has a “hard time staying 15 on.” (AR 294). 16 limited in functioning than Dr. Oldham’s January 2012 opinion. Dr. Lewis opined Plaintiff had 17 no significant limitation in his ability to understand and remember very short and simple 18 instructions; understand and remember detailed instructions; maintain concentration and 19 attention; accept instructions from supervisors and respond appropriately; sustain an ordinary 20 routine without special supervision; complete a normal workday and work week without 21 interruptions at a consistent pace; interact with coworkers; or deal with various changes in the 22 work setting. (AR 233-34.) Dr. Lewis assessed the likelihood that Plaintiff would emotionally 23 deteriorate in a work environment as minimal. (AR 234.) Both Dr. Soloman and Dr. Garcia 24 affirmed Dr. Lewis’ opinion. The ALJ gave great weight to the clinical findings and conclusions 25 of Dr. Lewis (AR 17), and moderate weight to both Dr. Soloman and Dr. Garcia (AR 18). 26 Dr. Lewis, Dr. Soloman, and Dr. Garcia all found Plaintiff significantly less Because other physicians’ opinions contradicted Dr. Oldham’s January 2012 opinion, the 27 ALJ was required to articulate specific and legitimate reasons for affording Dr. Oldham’s opinion 28 reduced weight. 15 1 3. The ALJ Properly Afforded Reduced Weight to Dr. Oldham’s Opinion a. 2 3 The ALJ identified specific and legitimate reasons for affording Dr. Oldham’s January 2012 opinion reduced weight Plaintiff contends the ALJ improperly discredited Dr. Oldham’s opinion. (Doc. 16, 10.) 4 Plaintiff argues the ALJ’s explanation for affording reduced weight to Dr. Oldham’s opinion was 5 too general because the ALJ failed to cite specific reasons for the decision. (Doc. 16, 10.) The 6 Commissioner responds the ALJ’s decision to discredit Dr. Oldham’s opinion is explained with 7 adequate specific and legitimate reasoning, and should be upheld. (Doc. 22, 16.) 8 In determining how much weight to accord a medical opinion, the ALJ considers the 9 opinion’s consistency with, and support found within, the overall record. Orn, 495 F.3d at 631; 10 see 20 C.F.R. §§ 404.1527(c)(3), (c)(4), 416.927(c)(3), (c)(4). An ALJ properly cites specific and 11 legitimate reasons for rejecting a medical opinion “by setting out a detailed and thorough summary 12 of the facts and conflicting clinical evidence, stating his interpretation thereof, and making 13 findings.” Magallanes, 881 F. 2d at 751 (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 14 1986)). 15 Although treating physicians’ opinions are entitled to deference, when a physician’s 16 opinion is not supported by the treatment notes, objective medical findings, and conflicts with 17 other medical opinions, the ALJ need not accept that opinion. Molina v. Astrue, 674 F.3d 1104, 18 1111-12 (9th Cir. 2012); see also, Thomas v. Barnhart, 278 F.3d 948, 957 (9th Cir. 2002) (“The 19 ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is 20 brief, conclusory, and inadequately supported by clinical findings”); Tonapetyan v. Halter, 242 21 F.3d 1144, 1149 (9th Cir. 2001) (ALJ properly rejected treating doctor’s opinion that the claimant 22 could not perform even sedentary work because “it was unsupported by rationale or treatment 23 notes, and offered no objective medical findings to support the existence of [the claimant’s] 24 alleged conditions”). 25 Here, the ALJ afforded reduced weight to Dr. Oldham’s opinion because it was internally 26 inconsistent with the record, completed largely on a check box form with very little explanation, 27 and conflicted with Plaintiff’s daily activities. (AR 18.) The ALJ first noted the January 2012 28 opinion was inconsistent, and contrasted sharply, with other evidence of record. (AR 18.) The 16 1 ALJ next underscored that Dr. Oldham’s treatment notes from 2011 indicated Plaintiff 2 experienced only mild paranoia. However, in contrast to the limitations of mild paranoia, Dr. 3 Oldham’s January 2012 opinion inexplicably opined that Plaintiff experienced marked restrictions 4 in daily activities, social functioning, and concentration, persistence, and pace. (AR 18.) The ALJ 5 further noted that Dr. Oldham’s opinion was largely a check box form, containing very little 6 explanation of the severe limitations. For example, Dr. Oldham’s explanation of why Plaintiff 7 would have trouble working a regular job on a sustained basis stated only that Plaintiff was, 8 “distrustful of others, [had] difficulty in groups of people, hard time staying on.” (AR 294.) The 9 opinion indicated Plaintiff had no repeated episodes of decompensation within a 12- month period, 10 yet asserted that even a minimal increase in mental demands or change in environment would 11 cause Plaintiff to decompensate, without providing further explanation. (AR 18.) 12 The ALJ further noted that, in contrast to Dr. Oldham’s opinion that Plaintiff had a marked 13 limitation in activities of daily living, Plaintiff repeatedly acknowledged he walked daily, read 14 books, watched television, prepared meals, and shopped. (AR 18, 45, 184-85, 233, 285, 291-92.) 15 Plaintiff paid his own bills, and completed household chores such as taking out the garbage, 16 washing dishes, and doing laundry. (AR 15, 17-19.) To the extent Plaintiff argues the ALJ’s 17 rejection of Dr. Oldham’s opinion was too general (Doc. 16, 10), the Court finds the ALJ cited to 18 substantial evidence explaining the reasoning for affording the doctor’s opinion reduced weight. 19 Plaintiff cites Embrey v. Bowen, in which the Ninth Circuit reversed an ALJ’s decision. In 20 Embrey, the ALJ discredited a doctor’s opinion because the medical opinions were not supported 21 by the objective findings, but the ALJ did not identify or analyze specific examples in the 22 decision. 849 F.2d 418, 421-22 (9th Cir. 1988) (“The ALJ must do more than offer his 23 conclusions. He must set forth his own interpretations and explain why they, rather than the 24 doctors', are correct.”). This case is distinguishable from Embrey. Here, the ALJ listed specific 25 reasons for discrediting the doctor’s opinion, identifying specific inconsistencies between Dr. 26 Oldham’s opinion and his treatment notes, Plaintiff’s alleged symptoms and daily activities, and 27 lack of explanation in the doctor’s opinion, as discussed above. The ALJ discussed that Dr. 28 Oldham’s explanations are brief and unsupported by the record, and properly afforded the opinion 17 1 reduced weight. Thomas, 278 F.3d at 957 (“The ALJ need not accept the opinion of any 2 physician, including a treating physician, if that opinion is brief, conclusory, and inadequately 3 supported by clinical findings”). 4 b. 5 6 The ALJ properly relied on physicians’ opinions in developing Plaintiff’s RFC, and did not act as her own medical advisor Plaintiff contends the ALJ rejected the examining and reviewing physicians’ opinions, 7 instead developing Plaintiff’s RFC based on the ALJ’s own opinion. Plaintiff claims the ALJ 8 impermissibly acted as her own medical advisor by interpreting raw medical data in developing 9 Plaintiff’s RFC. (Doc. 16, 10.) 10 An ALJ may not substitute his or her own interpretation of the medical evidence for the 11 opinion of a medical professional. Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999). 12 However, an ALJ may rely upon selected portions of a medical opinion while rejecting other parts. 13 See Magallanes, 881 F.2d at 753. See also Russell v. Bowen, 856 F.2d 81, 83 (9th Cir. 1988) (“It 14 is not necessary to agree with everything an expert witness says in order to hold that his testimony 15 contains ‘substantial evidence.’”) 16 In developing Plaintiff’s RFC, the ALJ adopted Dr. Oldham’s diagnosis of psychotic 17 disorder NOS, as well as Dr. Lewis, Dr. Soloman, and Dr. Garcia’s assessments of the extent of 18 Plaintiff’s limitations. (AR 14, 267.) The ALJ included Dr. Oldham’s January 2012 diagnosis in 19 Plaintiff’s RFC, but explained she afforded the extent of limitations in the opinion reduced weight 20 because they were inconsistent with the doctor’s treatment notes, the opinion was a check-box 21 form offering very little explanation, and the limitations contrasted with Plaintiff’s self-reported 22 daily activities. (AR 18.) Instead, the ALJ relied upon Dr. Lewis, Dr. Soloman, and Dr. Garcia’s 23 opinions, to which she afforded great weight (Dr. Lewis’ opinion) and moderate weight (Dr. 24 Soloman and Dr. Garcia’s opinions), in formulating the extent of limitations for Plaintiff’s RFC. 25 Contrary to Plaintiff’s assertion, the only portions of the examining and reviewing physicians’ 26 opinions the ALJ rejected were the physicians’ diagnoses that Plaintiff did not have any mental 27 condition. (AR 14.) 28 18 1 In sum, the ALJ did not act as her own medical advisor. In developing Plaintiff’s RFC, the 2 ALJ properly relied upon the portions of Dr. Oldham, Dr. Lewis, Dr. Soloman, and Dr. Garcia’s 3 opinions which were supported by the record. 4 c. 5 6 The ALJ properly considered inconsistencies between Dr. Oldham’s opinion and the record, including GAF scores assigned to Plaintiff Plaintiff contends the ALJ cites inconsistencies between the record and Dr. Oldham’s 7 January 2012 opinion that should have been interpreted as being consistent with Plaintiff’s alleged 8 symptoms. (Doc. 16, 12-13.) Plaintiff explains that he needs notes to remind him to take his 9 medications, does not cook, and was only able to last one day as a volunteer, and therefore his 10 self-reported activities do not negate his claims of disability. (Doc. 16, 12-13.) Plaintiff also 11 claims the GAF score assigned to him in March 2011 by Mr. Gay, the L.C.S.W. from Mental 12 Health, should be afforded weight because it is consistent with GAF scores assigned by Dr. 13 Oldham and Dr. Ramsey. (Doc. 16, 12-13.) These contentions lack merit. 14 i. The ALJ’s interpretations are reasonable 15 Even if “the ALJ’s interpretation . . . may not be the only reasonable one,” so long as it is 16 “still a reasonable interpretation and is supported by substantial evidence” it is not the Court’s 17 “role to second-guess it.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citation 18 19 omitted). Accordingly, if the ALJ provides a reasonable interpretation of the evidence that is supported by the record, the Court must affirm the decision. Id. 20 To the extent inconsistencies between the record and Dr. Oldham’s opinion could be seen 21 in a light more favorable to Plaintiff’s disability claim, the ALJ cited specific reasons in affording 22 Dr. Oldham’s opinion reduced weight. The crux of Plaintiff’s assertion is that the ALJ improperly 23 interpreted the evidence in the record against Plaintiff. However, the ALJ’s interpretation of the 24 evidence in the record is reasonable, and it is not the Court’s role to second-guess it. See Rollins, 25 261 F.3d at 857. 26 27 28 19 1 2 ii. The ALJ properly considered the GAF score given by Mr. Gay The ALJ is not required to give controlling weight to a treating physician's GAF score, and 3 an ALJ's failure to mention a GAF score does not render his assessment of a claimant's RFC 4 deficient. See e.g. Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) (“While a 5 GAF score may be of considerable help to the ALJ in formulating the RFC, it is not essential to 6 the RFC's accuracy. Thus, the ALJ's failure to reference the GAF score in the RFC, standing 7 alone, does not make the RFC inaccurate.”); Petree v. Astrue, 260 Fed.Appx. 33, 42 (10th Cir. 8 2007) (Unpublished Disposition) (“[A] low GAF score does not alone determine disability, but is 9 instead a piece of evidence to be considered with the rest of the record.”) 10 Here, the ALJ considered Mr. Gay’s GAF score in her decision despite the fact that Mr. 11 Gay is not a treating physician, explaining she afforded the GAF score little weight because it was 12 not consistent with the weight of the evidence. (AR 17.) Further, the ALJ afforded Dr. Oldham’s 13 GAF score reduced weight because it was also inconsistent with the weight of the evidence, and 14 provided specific examples of the inconsistencies in her discussion of the medical evidence. (AR 15 18.) The ALJ articulated specific and legitimate reasons for rejecting the GAF determinations. 16 See, e.g., Borrie v. Astrue, 2009 WL 2579497, *2 (C.D.Cal.) (“[T]he ALJ considered the GAF 17 score, but finding such scores unreliable, did not find it mandated disability. This is a specific and 18 legitimate reason for discounting the score.”). 19 20 d. Conclusion The ALJ properly afforded reduced weight to Dr. Oldham’s January 2012 opinion because 21 it contradicted the doctor’s own treatment notes, lacked support in the record, inadequately 22 explained its conclusions, and contradicted Plaintiff’s self-reported daily activities. In sum, the 23 ALJ provided specific and legitimate bases for rejecting Dr. Oldham’s January 2012 opinion by 24 discussing the record and testimony, and indicating how the objective evidence pointed to more 25 mild conditions than those in Dr. Oldham’s opinion. 26 27 28 20 1 B. The ALJ Properly Discredited Plaintiff’s Testimony 2 Plaintiff contends the ALJ failed to articulate legally sufficient reasons for rejecting 3 Plaintiff’s pain and subjective limitation testimony, and therefore, the Court should credit 4 Plaintiff’s testimony as true. (Doc. 16, 18.) 5 The Commissioner responds that the ALJ provided adequate bases for discrediting 6 Plaintiff’s testimony, and the bases were supported by substantial evidence. (Doc. 22, 17.) 7 1. 8 An ALJ must engage in a two-step analysis in evaluating the credibility of a claimant's Legal Standard 9 testimony regarding subjective pain. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 10 the ALJ must determine whether the claimant has presented objective medical evidence of an 11 underlying impairment that could reasonably be expected to produce the pain or other symptoms 12 alleged. Id. The claimant is not required to show that her impairment "could reasonably be 13 expected to cause the severity of the symptom she has alleged; she need only show that it could 14 reasonably have caused some degree of the symptom." Id. (quoting Lingenfelter, 504 F.3d at 15 1036). If the claimant meets the first test and there is no evidence of malingering, the ALJ can 16 only reject the claimant's testimony about the severity of the symptoms if he gives "specific, clear 17 and convincing reasons" for the rejection. Id. As the Ninth Circuit has explained: 18 19 20 21 22 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. 23 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citations and internal quotation marks 24 omitted); see also, Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226-27 (9th Cir. 2009); 25 20 C.F.R. §§ 404.1529, 416.929. Other factors the ALJ may consider include a claimant's work 26 record and testimony from physicians and third parties concerning the nature, severity, and effect 27 of the symptoms of which he complains. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 28 1997). 21 1 An ALJ’s credibility finding must be properly supported by the record and sufficiently 2 specific to assure a reviewing court that the ALJ did not arbitrarily reject a claimant’s subjective 3 testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc). The ALJ’s 4 decision must contain specific reasons for the finding on credibility, supported by the evidence in 5 the record, sufficiently specific to make clear the weight the adjudicator gave to the individual's 6 statements and the reasons for that weight. Social Security Ruling 96-7P. 7 8 9 2. The ALJ Articulated Specific, Clear, and Convincing Reasons for Rejecting Plaintiff’s Subjective Testimony The ALJ found that Plaintiff’s medically determinable impairment could reasonably be 10 expected to cause his alleged symptoms. (AR 18.) The ALJ, however, determined Plaintiff’s 11 testimony about the intensity, persistence, and limiting effects of the symptoms was not credible to 12 the extent it conflicted with the RFC. (AR 18.) The ALJ cited to Plaintiff’s daily activities, an 13 interview with the Social Security Administration, success with prescription drug treatment, his 14 demeanor while testifying at the hearing, and inconsistent statements as factors in finding 15 Plaintiff’s testimony not credible. (AR 18-19.) 16 Plaintiff contends the ALJ’s bases for discrediting Plaintiff were inadequate and the ALJ, 17 therefore, erred in discrediting his testimony. (Doc. 16, 16-18.) Plaintiff alleges (1) his activities 18 of daily living do not translate to specific work functions and, therefore, the ALJ erred in his 19 credibility finding; (2) the ALJ impermissibly isolated a “specific quantum of evidence” and 20 ignored other relevant evidence in support of her decision; (3) the ALJ erred in noting Plaintiff’s 21 success with treatment in discrediting his testimony because he suffers from symptoms despite his 22 medications; and (4) the ALJ erred by engaging in “sit and squirm” jurisprudence when the ALJ 23 commented that Plaintiff’s demeanor at the hearing was “generally unpersuasive.” (Doc. 16, 1624 19.) 25 The Commissioner responds that the ALJ correctly determined that the record does not 26 support Plaintiff’s complaints of disabling mental health issues (Doc. 22, 17), and provided legally 27 sufficient reasons supported by substantial evidence for rejecting Plaintiff’s complaints (Doc. 22, 28 21). 22 1 2 a. The ALJ properly considered Plaintiff’s daily activities Plaintiff alleges his activities of daily living do not translate into specific work functions 3 and, therefore, the ALJ erred in discrediting Plaintiff’s testimony based on his daily activities. 4 (Doc. 16, 18-19.) 5 An ALJ may consider “whether the claimant engages in daily activities inconsistent with 6 the alleged symptoms.” Molina, 674 F.3d 1104 (internal citation omitted); Valentine v. Comm’r of 7 Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (ALJ properly determined claimant’s “non8 work activities . . . are inconsistent with the degree of impairment he alleges”); Tommasetti, 533 9 F.3d at 1039 (“The ALJ may consider many factors in weighing a claimant’s credibility,” 10 including “the claimant’s daily activities”); 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (When 11 evaluating the credibility of pain testimony, an ALJ may consider claimant’s daily activities 12 among other factors); SSR 96-7p (same). An inconsistency between the level of activity reported 13 by a claimant and the claimant's alleged limitations is a factor that bears on credibility. See 14 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). 15 Here, the ALJ found Plaintiff’s activities of daily living were inconsistent with the severity 16 of symptoms he alleged and disabling mental impairments. (AR 19.) The ALJ noted Plaintiff’s 17 daily activities were “not as limited as one would expect” given Plaintiff’s testimony of disabling 18 symptoms, and that Plaintiff walks, eats breakfast, watches television, washes dishes, and does 19 laundry. (AR 19.) Additionally, Plaintiff prepares his own meals, grocery shops, takes out the 20 garbage, and pays bills. (AR 19.) Further, Plaintiff stated he did not spend time with others, yet 21 lived in a house with his sister and her two children, attended group therapy, grocery shopped, and 22 volunteered at an information desk. (AR 15, 17-19, 31, 39-40, 260-61, 263, 281, 283.) He 23 claimed he could not pay attention, follow written or spoken instruction or remember a lot of 24 things, yet he could sustain the concentration and memory to read, watch two to three hours of 25 television, manage his personal finances, perform household chores, and prepare meals. (AR 15, 26 17-19, 45, 182, 184-85.) To the extent Plaintiff alleges his activities of daily living do not 27 translate into specific work functions and, therefore, the ALJ erred in his credibility finding, his 28 argument is not convincing. (Doc. 16, 18-19.) 23 Plaintiff contends the ALJ erred in discrediting Plaintiff’s testimony based on his daily 1 2 activities because his daily activities do not translate into specific work functions. However, 3 Plaintiff misstates the ALJ’s findings. While the ALJ did not explain that Plaintiff’s daily 4 activities were consistent with specific work activity, the ALJ found Plaintiff’s daily activities 5 were inconsistent with the severity of symptoms he alleged. (AR 19.) Because Plaintiff’s daily 6 activities were inconsistent with the disabling symptoms he alleged, the ALJ properly found such 7 claims not credible. Burch, 400 F.3d at 680 (ALJ properly discounted credibility where he 8 “explained that [the claimant’s] daily activities ‘suggest that she is quite functional. She is able to 9 care for her own personal needs, cook, clean and shop. She interacts with her nephew and her 10 boyfriend. She is able to manage her own finances and those of her nephew’”); see also Ortiz v. 11 Astrue, CV07-05640OP, 2009 WL 1202890, *7-*8 (C.D. Cal. Apr. 29, 2009). 12 b. The ALJ properly considered Plaintiff’s Social Security interview Plaintiff contends the ALJ erred by referencing only one of Plaintiff’s three Social Security 13 14 Administration (“SSA”) interviews in the decision, and improperly relied upon a “specific 15 quantum of evidence” in making the credibility finding, while ignoring other relevant evidence.4 16 (Doc. 16, 16-17.) To the extent Plaintiff argues the ALJ erred in citing to one SSA interview and 17 not the others, thereby demonstrating a failure to look at the record as a whole, his argument is not 18 convincing. In discrediting Plaintiff’s testimony, the ALJ noted that during Plaintiff’s SSA interview, 19 20 the interviewer did not perceive any manifestations of Plaintiff’s alleged symptoms. (AR 19.) 21 Plaintiff argues the ALJ should not have “ignored” another SSA interviewer’s notation that 22 Plaintiff was difficult to interview and a third interviewer’s comments that Plaintiff came in asking 23 24 25 26 27 28 4 Plaintiff states “[t]he Commissioner[’s] reasoning is in error because [s]he has isolated a specific quantum of evidence and has ignored other relevant evidence to support of h[er] determination.” (Doc. 16, 16.) For this proposition, Plaintiff cites Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984); Reddick v. Chater 157 F 3d 715,720 (9th Cir. 1998); and Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir.1975). Gallant and Reddick explain that the Court must look to the whole record in reviewing an ALJ’s decision, and Day addresses that an ALJ must set forth specific reasons for rejecting a doctor’s uncontroverted opinion. Here, the ALJ’s decision sets forth specific and legitimate reasons for the ALJ’s decision, and the ALJ is not required to discuss each piece of medical evidence in the record. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). As explained throughout this Order, the ALJ’s decision suggests that the ALJ reviewed the record in its entirety and made a decision regarding Plaintiff’s disability based upon consideration of all the evidence. 24 1 for help with completing his appeal. (Doc. 16, 16-17.) Contrary to Plaintiff’s assertion, however, 2 the ALJ is not required to analyze each of Plaintiff’s interviews in her written decision. See 3 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (ALJ is not required to 4 discuss every piece of medical evidence contained in the record.). The fact that the ALJ discussed 5 one interview expressly does not indicate the others were ignored. 6 7 c. The ALJ properly considered Plaintiff’s success with treatment Plaintiff asserts the ALJ erred in noting his success with treatment, because he still suffers 8 from symptoms while on medication, as evidenced by his inability to volunteer for more than one 9 day and GAF scores indicating severe impairments. (Doc. 16, 17.) 10 Impairments which can be controlled effectively with medication are not disabling for the 11 purpose of determining eligibility for benefits. Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 12 1001, 1006 (9th Cir. 2006) (internal citation omitted). As the ALJ’s decision noted, Plaintiff’s 13 medical records and testimony confirm he is having success with treatment. (AR 19.) The ALJ 14 specifically noted that Plaintiff reports he still hears voices, but they are much better, and he is 15 also less paranoid. (AR 19.) At his hearing, Plaintiff testified that “[the medication is] reducing 16 the voices where I can’t hear them and it’s giving me the strength to say it’s not real and try to do 17 something else and avoid them.” (AR 45.) Plaintiff repeatedly acknowledged his condition 18 improved with medication and that his medications did not cause adverse side effects that would 19 preclude sustained work activity. (AR 19, 261-64, 266, 268, 283, 285, 287.) 20 Because Plaintiff’s mental impairment improved with medication, the ALJ did not err in 21 citing his success with treatment among the reasons for discrediting Plaintiff’s testimony. (AR 22 19.) 23 24 25 d. The ALJ’s consideration of Plaintiff’s demeanor during the hearing was not improper Citing Day v. Weinberger, Plaintiff contends the ALJ impermissibly engaged in “sit and 26 squirm” jurisprudence by commenting that Plaintiff’s demeanor at the hearing was “generally 27 unpersuasive.” 522 F.2d 1154, 1156 (9th Cir. 1975). (Doc. 16, 17.) This contention lacks merit. 28 25 1 In Day the court reversed an ALJ’s decision denying benefits because the ALJ relied upon 2 a plaintiff’s failure to exhibit manifestations of prolonged pain at her hearing. See Day, 522 F.2d 3 at 1156. (“[T]he examiner noted that during Day's appearance at the hearing, she did not exhibit 4 the physical manifestations of prolonged pain that are listed in a leading medical textbook.”) 5 Here, unlike Day, the ALJ specifically emphasized that Plaintiff’s “generally unpersuasive” 6 behavior at the hearing was only one among many factors upon which she relied in assessing the 7 credibility of Plaintiff’s testimony, and the factor was not determinative. (AR 19.) 8 9 10 11 17-19.) e. The ALJ properly considered Plaintiff’s inconsistent statements in assessing Plaintiff’s credibility The ALJ’s credibility analysis also considered Plaintiff’s inconsistent statements. (AR 15, An ALJ may consider inconsistencies between a claimant’s statements in rejecting 12 subjective claims. Molina, 674 F.3d at 1112; Thomas, 278 F.3d at 958-59 (inconsistencies in a 13 claimant's testimony may be used to discredit subjective complaints). Inconsistencies or internal 14 conflicts in Plaintiff's statements are a clear and convincing reason to give less weight to those 15 statements. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997), as amended on 16 September 17, 1997 (in weighing plaintiff's credibility, the ALJ may consider "inconsistencies 17 either in [plaintiff's] testimony or between his testimony and his conduct"); see also Fair v. 18 Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 1989) (an ALJ can reject pain testimony based on 19 contradictions in plaintiff's testimony). 20 The ALJ noted inconsistencies within the record regarding Plaintiff’s statements about his 21 drug abuse and mental health treatment history, as well as the reason for the termination of his 22 employment. (AR 18.) For example, Plaintiff claimed auditory hallucinations since childhood, 23 yet never reported them to his mental health providers. (AR 18.) He claimed he had received 24 mental health treatment for at least three years, yet his records reflect only two appointments 25 between May 2009 and February 2011. (AR 18.) Further, Plaintiff reported to Dr. Lewis he had 26 stopped using drugs and alcohol when he was 37 years old (in approximately 2008), yet told the 27 ALJ he had stopped prior to 2007. (AR 18, 34.) Regarding his criminal record, Plaintiff told the 28 ALJ he served between five or six years in jail for DUIs, drug sales, and possession of a firearm; 26 1 he indicated to Dr. Lewis he had four arrests and two years of incarceration. (AR 33, 230.) 2 Plaintiff testified he was awarded disability benefits in 1994 on the basis of an alleged substance 3 abuse disorder after he was convicted for six DUIs (AR 32), however Agency records indicate his 4 application was denied (AR 170-72). 5 Because Plaintiff’s testimony contradicted his statements throughout the record, and the 6 record also contained internal inconsistencies, the ALJ reasonably questioned his credibility. 7 Johnson, 60 F.3d at 1434 (the ALJ properly “cited several instances of contradictions within the 8 claimant's own testimony” in finding her not credible). Thus, the ALJ properly identified and 9 considered the inconsistencies between Plaintiff’s testimony and the record in assessing Plaintiff’s 10 credibility. 11 12 f. Conclusion The ALJ cited Plaintiff’s inconsistent daily activities and statements, successful treatment 13 with prescription medications, and general demeanor in determining Plaintiff’s testimony was not 14 fully credible. (AR 19.) The ALJ also noted that during an in-person interview, the SSA 15 interviewer did not observe or perceive Plaintiff to have any challenges hearing, reading, 16 breathing, understanding, concentration, or talking, among other criteria. (AR 19.) When, as here, 17 the ALJ’s interpretation of the claimant’s testimony is reasonable and supported by substantial 18 evidence, it is not the Court’s role to “second-guess” it. Rollins v. Massanari, 261 F.3d 853, 857 19 (9th Cir. 2001). 20 The ALJ cited clear and convincing reasons for rejecting Plaintiff’s testimony regarding 21 the intensity and limiting effects of his symptoms. Moreover, as the ALJ’s reasons were properly 22 supported by the record and sufficiently specific, the ALJ properly rejected Plaintiff’s testimony 23 on permissible grounds and did not arbitrarily discredit Plaintiff’s testimony. 24 25 VI. CONCLUSION AND ORDER Based on the foregoing, the Court finds the ALJ's decision is supported by substantial 26 evidence of the record as a whole and is based on proper legal standards. Accordingly, the Court 27 DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social 28 27 1 Security. The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Carolyn 2 W. Colvin, Acting Commissioner of Social Security, and against Plaintiff Bronson Lopez. 3 4 5 6 IT IS SO ORDERED. Dated: July 7, 2014 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28